EU: Motorola’s patent attack on Apple was “abuse of a dominant position”

If found to have violated antitrust rules, Motorola could be fined $410 million.

For a few years now, Motorola has been using patents that apply to widely used technology standards as its go-to "ammunition" in the worldwide smartphone wars, but that strategy is becoming very problematic. Recently, a US federal judge set a very low limit on how much Motorola could get for such patents, and now the company is in trouble for its use of those patents in Europe too.

On Monday, the European Commission, the executive body of the European Union, officially informed Google (owner of Motorola Mobility) that the company’s attempts to enforce “an injunction against Apple in Germany on the basis of its mobile phone standard-essential patents (‘SEPs’) amounts to an abuse of a dominant position prohibited by EU antitrust rules.”

As we've reported for over a year now, Brussels has been eyeing Motorola’s attempt to halt Apple’s use of 3G-related patented technology in both Germany and the US. The EU's investigation continued even though a German court ruled against Motorola over at least one 3G-related patent last year. This case is part of a larger, worldwide war over intellectual property (and potential violations) between smartphone makers and related companies.

According to the IDG News Service, Jonathan Todd, an EC spokesperson told reporters in Brussels that “most of the behavior” took place before Google’s acquisition of Motorola Mobility in 2012. Essentially, the European Commission feels that Motorola jumped the gun when it moved to file an injunction against Apple in Germany rather than license the patent under Fair, Reasonable and Non-Discriminatory ("FRAND") terms to license the GPRS SEP.

“In such a situation, the Commission considers at this stage that dominant SEP holders should not have recourse to injunctions, which generally involve a prohibition to sell the product infringing the patent, in order to distort licensing negotiations and impose unjustified licensing terms on patent licensees,” the EC added. “Such misuse of SEPs could ultimately harm consumers.”

But Motorola charges that it gave Apple ample opportunity to enter an adequate license agreement.

"We agree with the European Commission that injunctions should only be sought against unwilling licensees and, in this case, Motorola followed the procedure established in the German Supreme Court's Orange Book ruling,” Motorola spokeswoman Katie Dove told Ars. “Apple had to make six offers before the court recognized them as a willing licensee.”

Apple did not immediately respond to Ars’ request for comment.

At this point, the companies can respond in writing and can request a further hearing—however, should the European Commission find sufficient evidence of a violation of antitrust rules, it could impose a fine of up to 10 percent on Motorola's worldwide revenue. Motorola's revenue was $4.1 billion in 2012, meaning the company could theoretically be fined up to $410 million if the violation is drastic.